Citation Nr: 21031007 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 13-32 027 DATE: May 20, 2021 ORDER Entitlement to service connection for bladder cancer, to include as secondary to the Veteran's service connected non-Hodgkin's lymphoma, or due to Agent Orange exposure, is denied. REMANDED Entitlement to service connection for type II diabetes mellitus, to include as secondary to the Veteran's service connected non-Hodgkin's lymphoma is remanded. FINDINGS OF FACT 1. The preponderance of the evidence establishes the Veteran's bladder cancer was not present until more than one year following his discharge from service and is not etiologically related to his active service, to include as secondary to his service connected non-Hodgkins lymphoma disability. 2. The preponderance of the evidence is against a finding that the Veteran was exposed to Agent Orange, or other tactical herbicides, in service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for bladder cancer, to include as secondary to service connected non-Hodgkin's lymphoma, or due to Agent Orange exposure, have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from September 1967 to July 1971. He died in September 2016. The Appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). When this case was last before the Board in October 2017, it was remanded for additional development. Specifically, the RO was instructed to contact the National Archives and Records Administration to obtain copies of the ship's logs for the U.S.S. Sample. The RO was also required to obtain a medical opinion regarding the etiology of the Veteran's bladder cancer. The ship's logs were obtained, and an adequate medical opinion was obtained. As such, the Board finds that the AOJ substantially complied with the directives in the October 2017 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service ConnectionLegal Criteria Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Bladder Cancer In this case, the Board has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Appellant contends that the Veteran's claimed bladder cancer is the result of his active duty service, to include as secondary to his service connected non-Hodgkin's lymphoma or due to Agent Orange exposure. Initially, the Board notes that there is no record of in-service diagnosis, treatment or event related to the Veteran's bladder cancer. However, the Veteran is a Vietnam era Navy veteran whom the Appellant claims to be a Blue Water veteran. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 is presumed to have been exposed to herbicide agents. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service. 38 U.S.C. § 1116(a); 38 C.F.R. § 3.309(e). Bladder cancer is not a presumptive condition, however, direct service connection may nevertheless be established by evidence demonstrating that the disease is related to service, to include the in-service herbicide exposure. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The phrase "service in the Republic of Vietnam" in 38 U.S.C. § 1116 includes the territorial seas of the Republic of Vietnam extending 12 nautical miles from the shores of that nation. See Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). Congress has enacted the Blue Water Navy Vietnam Veterans Act of 2019 (Blue Water Navy Act). Pub. L. No. 116-23, 133 Stat. 966 (2019). The effective date of the Blue Water Navy Act is January 1, 2020. The stated main purpose of this Act was "to amend title 38, United States Code, to clarify presumptions relating to the exposure of certain veterans who served in the vicinity of the Republic of Vietnam, and for other purposes." See Blue Water Navy Vietnam Veterans Act of 2019, Pub. L. No. 116-23, 133 Stat. 966 (2019), Synopsis. The Blue Water Navy Act defines service "offshore of the Republic of Vietnam" as encompassing service in the territorial sea extending 12 nautical miles from the shores both of that nation and of Cambodia. See 38 U.S.C. § 1116A(d) (2019). It provides that the 12 miles are measured seaward of a line commencing on the southwestern demarcation line of the waters of Vietnam and Cambodia and intersecting at certain points (latitude North, longitude East); these are set out in a Points Geographic table included there. See 38 U.S.C. § 1116A(d). A veteran's service must take place during the period January 9, 1962 to May 7, 1975. 38 U.S.C. § 1116A(a). Here, the Veteran was abroad the U.S.S. Sample from March 1968 to June 1971. In response to the Board's October 2017 Remand, the RO obtained the ship's logs for the U.S.S. Sample from the Veteran's period of service. In January 2021, a professional researcher from the Veteran's Benefits Administration, Compensation Service, Military Records Research Center, after comprehensive research and a review of the records, concluded that there was no evidence located to support documentation of the Veteran's claimed herbicide exposure. Further, in a February 2021 memorandum, the VA indicated that the Veteran's herbicide exposure could not be conceded as the record does not show the Veteran had duty or visitation in the Republic of Vietnam, or on its inland waterways, or nautical service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23. The Board further notes, after reviewing the U.S.S. Sample's logbooks, Blue Water service is not documented for the ship until 1972, a year after the Veteran left active duty service. As such, the Board finds that the totality of the evidence does not show that the Veteran was exposed to Agent Orange, or other tactical herbicides while on active duty service. Regarding secondary service connection, the Board notes that since the Veteran had a diagnosis of bladder cancer, and was service connected for non-Hodgkin's lymphoma, the first two requirements of secondary service connection are met. See Wallin, 11 Vet. App. at 512. All that remains to be resolved is whether the medical evidence of record establishes a link between the Veteran's lymphoma and his bladder cancer. In response to the October 2017 Board remand, the RO obtained a February 2020 VA Medical Opinion regarding the etiology of the Veteran's bladder cancer. The examiner opined that the Veteran's diagnosed bladder cancer was less likely than not (less than a 50 percent probability) etiologically related to his active duty service or any herbicide exposures. The examiner explained that the Veteran developed transitional cell carcinoma of the bladder which has no objective evidence of any direct or causal relationship to herbicide exposure. The examiner further noted that the Veteran's available records contained no other evidence demonstrating any relationship between his service and his bladder cancer. Further, the examiner opined that it was less likely than not (less than a 50 percent probability) that the Veteran's bladder cancer was aggravated by his service-connected non-Hodgkin's lymphoma. The examiner explained that the medical evidence of the record is insufficient to determine a baseline severity for the Veteran's bladder cancer. However, after a review of the available records, there was no objective evidence of any relationship, to include aggravation, between the Veteran's lymphoma and his transitional cell carcinoma of the bladder. The RO then obtained a March 2021 VA medical opinion regarding the etiology of the Veteran's bladder cancer. The examiner reviewed the Veteran's records, and acknowledged the Appellant's claim that a Dr. Y. stated the Veteran's bladder cancer could be related to his lymphoma. The examiner opined that the Veteran's bladder cancer was less likely than not (less than a 50 percent probability) proximately due to, or the result of, the Veteran's service-connected lymphoma. The rationale provided was that the Veteran's bladder cancer histology was identified as transitional cell carcinoma. The examiner explained that neither non-Hodgkin's lymphoma nor herbicide exposure is an established primary etiology of transitional cell carcinoma in the medical literature. In this case, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The Board also notes that under certain circumstances, lay evidence may be sufficient to establish a nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay evidence has been found to be competent with regard to a disease that has "unique and readily identifiable features" that are "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007); see also Petitti v. McDonald, 27 Vet. App. 415, 427-28 (2015) (where the Court of Appeals for Veterans Claims found objective evidence of pain need not come from a medical professional; a lay person may provide the requisite confirmation). The Board has considered the evidence of record. The Board notes that the VA examiners are medical professionals competent to opine as to the etiology of the Veteran's bladder cancer. There is no evidence that the examiners are not credible. Moreover, the examiners provided an analysis based upon both subjective and objective information to form an opinion based upon medical expertise. As such, the Board affords these opinions significant probative weight. During her October 2016 Board hearing, the Appellant testified that she believes the Veteran's bladder cancer is etiologically related to his non-Hodgkin's lymphoma or, in the alternative, to Agent Orange exposure. The Board weighs the above-mentioned VA examination against the Appellant's lay contentions that the Veteran's bladder cancer is due to service. While the Appellant is competent to testify to what she directly observed, she is not competent to provide a medical opinion as to the etiology of the Veteran's disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Additionally, as noted above, the Veteran's exposure to Agent Orange in service has not been established. As such, the Board finds the VA examinations, which opined against a link between the Veteran's currently diagnosed disabilities and his service, to be of high probative value. Thus, the probative evidence of record preponderates against the Appellant's claim for service connection. In light of the above discussion, there is no evidence that the Veteran sought treatment for or was diagnosed with bladder cancer disabilities while in service, or within a year after service, and there is no medical opinion in the record linking his current disabilities to his active duty service, to include as secondary to his service connected lymphoma. Therefore, the claims must be denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. REASONS FOR REMAND Diabetes When VA undertakes to provide an examination or opinion, it must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). While there is a February 2020 VA medical opinion in the record for the Veteran's claimed knee disabilities, the Board finds it to be inadequate. In proffering the opinion, the examiner noted that the Veteran's diabetes would be etiologically related to his Agent Orange exposure, as diabetes is presumptively related to Agent Orange. This was the sole basis for the examiner's opinion; however, the Veteran has no confirmed exposure to Agent Orange or other tactical herbicides while in service. The examiner did not address direct service connection, or whether the Veteran's diabetes was proximately due to, or aggravated by, his service-connected non-Hodgkin's lymphoma. As such, the VA examiner did not adequately assess whether the Veteran's type II diabetes mellitus was etiologically related to his active duty service, to include as secondary to, or aggravated by, his service-connected non-Hodgkin's lymphoma. As such, the Board finds an additional examination is required to determine the etiology of the Veteran's diabetes disability. The matters are REMANDED for the following action: Obtain a medical opinion from an examiner, who has not examined the Veteran before, with sufficient expertise to address the etiology of the Veteran's claimed diabetes mellitus. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner should state whether the Veteran's claimed diabetes mellitus at least as likely as not (a 50 percent probability or greater): originated during his period of active service or was otherwise etiologically related to her active service. Additionally, the examiner should address whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's diabetes mellitus was proximately due to, or aggravated by, his service-connected non-Hodgkin's lymphoma disability. For purposes of this opinion, the examiner should assume that the Veteran is a reliable historian and must not ignore the Veteran's competent reports of in-service injuries, or of symptoms experienced during active service and since. In this regard, the examiner must discuss and consider the Veteran's competent lay statements (Continued on the next page) The examiner must provide a complete rationale for all proffered opinions. If an examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.